Saturday, September 12, 2015

Sexual Assault, Consent Apps and Technological Solutionism

Sexual assault and rape are significant social problems. According to some sources, one in five American women will be victims of sexual assault or rape at some point during their university education. Though this stat is somewhat controversial  (see here for a good overview) similar (sometimes higher) figures are reported in other countries. For example, in Ireland one estimate is that 31% of women experience some form of 'contact abuse' in their lifetime. The figure for men is lower, but higher than you might suppose, with abuse more likely to occur during childhood.

Clearly we should do something to prevent this from happening. Obvious (and attempted) solutions include reform of legal standards and processes, and challenging prevailing social attitudes and biases. These things are hard to change. But the modern age is also noteworthy for its faith in the power of technology. Many are smitten by technology’s ability to solve our problems, from trivial things like counting calories, contacting friends and navigating around an unfamiliar city, to more complex problems like food production and disease prevention. No problem seems immune to the pervasive reach of technology. Could the problems of sexual assault and rape be the same?

That is certainly the belief of some. In what seems like an almost farcical apotheosis of the ‘is there an app for that?’-trend, two companies have launched sexual consent-apps in the past year: (i) the (short-lived) Good2Go app; and (ii) the more recent We-Consent app. Both are (or were) designed to ensure that the partners to any potential sexual encounter validly consented to that encounter. The rationale behind both being that the presence or absence of consent (and/or reasonable belief in consent) is critical to determining whether a sexual assault took place.

Now I’m all for technology, but in both instances these apps seem spectacularly mis-judged. Criticisms have already proliferated. In this post, I want to take a more detailed look at the philosophical and ethical problems associated with these apps. In doing so, I will suggest that both are indicative of a misplaced belief in the power of technology to solve social problems.

1. What problems need to be solved?
What gives rise to the problem of sexual assault and rape? There are many answers to that question. Part of the problem lies in pervasive and pernicious social attitudes, part of the problem lies in existing legal standards, part of the problem has to do with the procedures used to investigate and adjudicate upon sexual assault cases (be they criminal or civil). It is not possible to do justice to the full suite of problems here, and it is not necessary either since the apps with which I’m concerned are only intended to address a particular aspect of the issue.

The aspect in question concerns the role of consent in sexual encounters. Most legal standards stipulate that the presence or absence of consent is what makes the crucial difference: it’s what turns a mutually enjoyable activity into a criminal one. For instance, the crime of rape (in England) is defined as the intentional penile penetration of the vagina, anus or mouth of another when (a) that other does not consent and (b) the perpetrator does not have reasonable belief in consent (in England, ‘rape’ is a gender-specific crime and can only be perpetrated by a man; there is a gender-neutral crime called ‘assault by penetration’). Consent is thus critical to what we call the ‘actus reus’ and the ‘mens rea’ of the crime.

Consent is primarily a subjective attitude — a willingness to engage in an activity with another — but it is signalled and evidenced through objective conduct (e.g. through saying ‘yes’ to the activity). Ideally, we would like for people to rely upon common knowledge signals of consent, that is: signals that are known (and known to be known etc) to indicate consent by both parties to the activity. But one of the major problems in sexual assault and rape cases is the widespread disagreement as to what counts as an objective signal of consent. Many people infer consent from dubious things like dress, past sexual behaviour, body language, silence, lack of resistance and so on. Oftentimes people are unwilling to have open and explicit conversations about their sexual desires, fearing rejection and social awkwardness. They rely upon indirect speech acts that allow them some plausible deniability. Furthermore, there are a range of factors (intoxication, coercion, deception) that might cast doubt on an otherwise objective signal of consent. The result is that many sexual assault and rape cases break down into (so-called) he-said/she-said contests, with both parties highlighting different potential signals of consent or non-consent, or different interpretations of those signals.

In short, there are significant epistemic problems associated with inferring consent. For present purposes, these problems can be said to break down into two major types:

Social Bias/Awkwardness Problems: These are what prevent people from having open and honest conversations about sexual desires/willingness to engage in sex, and lead them to rely on more dubious indirect signals. These problems occur prior to the sexual encounter itself (i.e. they are ex ante problems).

Evidential Problems: These are what give rise to the he-said/she-said dynamic of many sexual assault and rape trials. Most sexual encounters occur in private. Only the participants to the encounter are present. We rely on their testimony to tell us what happened. But they may disagree about which signals were present or how they ought to be interpreted. Hence, we may lack good, uncontested evidence of what took place (these are ex post problems).

What’s interesting about the two consent apps under consideration here is that they often claim to be directed at solving the first set of problems, but then function in a way that is clearly designed to address the second set of problems. Indeed, despite the protestations of their creators, it seems like the second problem is where they are most likely to have their impact and that impact does not seem to be positive. To see this, we need to consider how they work.

2. How the Apps Work
I am going to focus on two sexual consent apps in this piece. I am not aware of any others, though I haven’t performed an exhaustive search. The first is the Good2Go app, which was released in September 2014, only to be scrapped in October 2014. The creator now promises a re-launch in November 2015, with the focus being exclusively on consent-related education. The second is the We-Consent app, which is actually one of three apps, each designed to address issues surrounding the giving and withdrawing of consent. As far as I am aware, the We-Consent app is still in existence and available for download.

What’s interesting about both apps is how the creators explicitly state that their goal is to address the bias/awkwardness problem. The apps, we are told, are designed to facilitate open and honest conversations about sexual consent. Consider the marketing blurb on the frontpage of the We-Consent website. It tell us that:

Affirmative consent begins with you… talk about “yes means yes” before acting…show respect, ALWAYS DISCUSS mutual consent.

The company’s mission statement says that:

We are the affirmative consent member division of — a group devoted to changing the societal conversations around sexual interactions… the We-Consent Mobile App [is designed] to encourage discussion about affirmative consent between intended partners. 
(Note: the ISCE is the Institute for the Study of Coherence and Emergence)

And the focus on ‘starting the conversation’ is confirmed by the company’s founder Michael Lissack (who also happens to be the executive director of the ISCE) in an interview with the Chronicle of Higher Education:

So what’s the main purpose? The main purpose is to change the conversation. If these apps work the way they should, in a year or two if people go to a frat party, instead of the base assumption being everyone in attendance is available for hooking up, the base assumption will be, if you wish to hook up, talk about it first.

This attitude seems to be shared by Lee Ann Allman, the creator of the Good2Go app. Most of the materials associated with this app have been taken offline after Apple withdrew its approval. But some of the underlying philosophy can be pieced together from media discussions. For example, in a discussion on the Guardian, Allman is quoted as saying that the app should ‘help alleviate the culture of confusion, fear and abuse on campus’. It is also apparent from Allman’s desire to re-launch the product with an exclusive educational purpose. On the webpage we are told that:

Good2Go, a product of Sandton Technologies, will now focus on developing educational materials for college and university students, administrators, and faculty member to help them understand consent...

In many ways, this is laudable stuff. If these apps really could facilitate open and honest conversations about consent and sexual desire, then they might help prevent some incidents of sexual assault and rape. But in terms of their functionality, both apps are also clearly designed to address the evidential problems. They do so by encouraging the potential participants to a sexual encounter to use their smartphones as devices for signalling consent. The signals are then recorded, encrypted, and stored on a database where they can be retrieved and used as evidence in a civil or criminal investigation into sexual assault or rape. This helps to circumvent the he-said/she-said dynamic alluded to earlier on.

The apps perform this function in slightly different ways. Good2Go, in its original form, was a text-based communication app. If you wished to have sex with someone, you would send them a message asking them ‘Are we good2go?’. They would then be given three optional responses: (i) ‘No thanks’ (which would be accompanied by the message ‘Remember! No means No! Only Yes means Yes, but can be changed to NO at anytime!’; (ii) ‘Yes, but…we need to talk’ and (iii) ‘I’m Good2Go’. If the third option was chosen, the app asked the person to gauge their sobriety level, using four options: sober, mildly intoxicated, intoxicated but Good2Go, or pretty wasted. If ‘pretty wasted’ was chosen, the app would not permit consent to be given. Otherwise, everything would be ‘Good2Go’. A record of the interaction would be stored, verifying the identity of the partners by using their phone numbers.

We-Consent is different in that it adopts a video-messaging format, assisted by some pre-recorded voice messages. If you wish to have sex with someone, you open the app and record a message stating your name and the name of your intended partner. You then hand your phone to your partner (or point the video camera at them) and get them to record a response. If they confirm consent through a clear ‘yes’ the app delivers a pre-recorded response stating that the sexual encounter is permissible. The videos are recorded and stored in a double-encrypted form for retrieval at a later date. The functionality here is slightly more straightforward, but conscious of the need to facilitate the withdrawal of consent, the app-makers have created two additional apps, ‘What-about-no’ and ‘Changed-mind’, which allow people to communicate messages of themselves withdrawing consent at a later time. Again, the record of this ‘no’ is recorded and stored on a database for later retrieval. You can watch videos demonstrating how the We-Consent and What-about-no apps work on the company’s webpage.

So, in short, although the creators maintain that the apps are designed primarily to address the bias/awkwardness problems, their functionality is also clearly designed to solve the evidential problems by creating an independently verifiable record of the consent (or non-consent).

3. Why these apps make things comparatively worse
Criticisms of these apps have proliferated online. I share this critical perspective: I think both apps are highly questionable. But I want to conduct a more comprehensive evaluation than has been done to date. I think any evaluation of these apps must do two things. First, it must evaluate them as potential solutions to both sets of problems (i.e. bias/awkwardness and evidential). Second, it must evaluate them using a contrastive methodology. That is to say, it should look to whether these apps improve things relative to the current status quo. That status quo is one that may be characterised by pernicious beliefs surrounding the meaning of different consent signals and significant evidential problems, and in which other proposed solutions to those problems typically involve reforming legal standards (e.g. making it slightly easier to prove non-consent) and improving consent-related education.

Let’s look at the consent apps and the evidential problem first. In a simple sense, these apps do ‘solve’ some of the evidential problems. An encrypted and independently verifiable record of what was signalled between the parties would be a boon to law enforcement. It would represent an evidential advantage relative to the current status quo in which such evidence is not available. But this is obviously a naive way of looking at it. There are at least three significant problems created by these apps that may serve to negate that evidential advantage.

The first is that the apps create decontextualised records of consent signals. I know that is a hideously academic way of putting it, but it captures an important truth. The meaning of a particular signal is always relative to its context (to use some technical terms, the meaning is a function of both pragmatics and semantics). The Good2Go app strips away that context by limiting the record to a series of text messages; the We-Consent app strips away the context by relying on short video recordings of the faces of the potential sexual partners. This is important because there are contextual factors that could render seemingly clear signals of consent practically worthless. The obvious one is coercion. If I record a video message (or tap a button) stating my willingness to consent at gunpoint (with the gun fortuitously invisible to the recording), my signal is worthless. The gun is an extreme example; the same is true if I signal while surrounded by a threatening group of frat boys, or if my friend is being threatened and so on. Other contextual factors that are stripped away by these apps might include degrees of intoxication (though the Good2Go app tried to address this problem) and deception. Eyewitness testimony certainly has its problems, but at least it tends to include contextual information. This facilitates more appropriate interpretations of the signals. The danger with the consent apps is that their verifiable but decontextualised record would be seen to trump this more contextualised eyewitness testimony.

A second problem with the apps concerns the withdrawal of consent. If there is a prior record of you signalling consent (stored on a database and capable of being retrieved at a later time) then the only way to withdraw consent in a legally secure manner is to record another signal of withdrawal. As far as I am aware, the Good2Go app did not even attempt to facilitate such a recording (apart from including the reminder that consent could be withdrawn at any time). The We-consent app does attempt to do so through its companion apps What-about-no and Changed-mind, but both require that the person retrieve their phone in the midst of a sexual encounter and use it to record their withdrawal of consent. Not only is this unlikely to happen, it may be impossible if the other party prevents it (or if the phone is simply too far away).

This brings me to the third problem. By creating a record, both apps may add an air of menace and coercion to sexual encounters that would otherwise be lacking. This could be detrimental to both negative and positive sexual autonomy (i.e. the ability to avoid sex if you don’t want it, and to have sex if you do). If you know that there is a prior record of positive consent, you may be reluctant or unwilling to withdraw consent, even if that is your true preference. Consequently, you might be pressured into continuing with something you would rather bring to an end. Likewise, these apps may have an impact on positive sexual autonomy by making people less likely to initiate sexual encounters they would prefer to have, for fear that they couldn’t bring them to an end when they wished and for fear that there would be permanent and potentially hackable record of all their sexual partners.

For these reasons, I’m inclined to conclude that the apps represent a dis-improvement from the current status quo.

Do they fare any better when assessed as potential solutions to the bias/awkwardness problem? I don’t think so. Although their mere existence (and presence on one’s phone) might direct attention toward the issue of consent — and so might encourage people to take more care to learn their putative partner true desires — they once again seem to create problems that negate any advantage.

An obvious one is ambiguity. This is particularly true for the Good2Go app since it uses a euphemism (‘Good2Go’) as a way of communicating consent. Euphemisms may help people to overcome awkwardness, but they are more uncertain in their meaning than direct forms of speech (e.g. ‘Yes I agree to engage in the following sexual activity X with you’). If you want people to have more open and honest conversations about sexual desire, then it might be better to facilitate direct forms of speech.

This links to another problem. Both apps may stifle the appropriate conversations by giving people limited conversational options. Good2Go gives you only one way of asking for consent and three ways of responding. We-consent is also limited, requiring you to simply state ‘Yes’ or ‘no’ to sexual relations. But these limited options may not allow you to truly express all that needs to be expressed. And because the devices are being used as a proxy for the awkward conversation, they may actually serve to discourage people from having (or seeking) that longer conversation. That said, at least Good2Go tries to facilitate this by including the ‘Yes but…’ option, though as others have pointed out it might have been better if it was simply a ‘we need to talk..’ option.

Another problem with apps of this sort is that they may bias the outcome of any conversation by presuming certain defaults. This criticism has been thrown at Good2Go in particular. The three response options are biased in favour of consent (two out of the three involve affirmation). Given known biases for extremeness avoidance this may result in more people choosing the intermediate option (‘Yes but…’) than is truly desirable. Also, in its measures of sobriety, it assumes that you have to be ‘pretty wasted’ to be unable to consent. The validity of intoxicated consent is contested, but this may err too much in favour of the possibility of intoxicated consent.

There is also the question of how likely people are to use these apps. I may be wrong, but I have a hard time imagining someone whipping out their smartphone and using it to both initiate and record responses to sexual advances. If anything, that would seem to add awkwardness to the situation, not take it away.

Finally, you have to confront the fact that these apps are largely geared towards men (still generally viewed as the ‘initiators’ of sexual encounters). Michael Lissack, the creator of We-Consent, is explicit about this when he describes athletic teams (who he assumes to be male) and fraternities as the target audience for his app. And the evidential functionality of the apps is (arguably) geared toward protecting men from ‘false’ accusations of sexual assault and rape. As such, these apps may largely reinforce patriarchal attitudes towards sexual assault and rape. Empowerment of female sexual agency does not seem to be to the forefront.

On the whole then, it seems like the apps do not represent a contrastive improvement from the existing status quo surrounding bias and awkwardness.

4. Could technology ever solve these problems?
This evaluation of Good2Go and We-consent raises a further question: could technology ever be used to solve the two problems? These apps clearly have their failings, but maybe there are other technological solutions? Maybe. It’s hard to evaluate all the potential possibilities, given the diversity of technology, but if we limit ourselves to information and communication technologies, then I would suggest that it is unlikely that we will find a solution there.

Natasha Lomas — author of a Techcrunch article critiquing Good2Go — suggested that an app including funny conversational prompts might be a better way to overcome the bias/awkwardness problem. You could also improve things by allowing for more diverse responses or by allowing users to generate their own (but then it’s just a text message conversation and we already have apps for that). I suspect, however, none of these messaging systems would be wholly desirable. One problem is that even if you removed the explicit recording and storage aspect, these apps would still create records of the conversation. This might encourage the menacing air I mentioned earlier and discourage conversation. A purely educational app, with no recording of responses and just provision of information, might fare better. This may be what ‘Good2Go’ ends up becoming. The technology in that case would serve as a way to package and distribute the information. But then this would need to supplemented by plenty of ‘offline’ education too.

In terms of the evidential problem, I’m not sure that there is any desirable technological solution. The obvious one would involve more complete video and audio recordings of sexual encounters. They would need to be ‘complete’ to allow for consent to be withdrawn, and they would need to be far more extensive than what can be provided by a single smartphone or wearable tech camera in order to avoid the problem of decontextualisation. But then, if the recordings need to be that complete and extensive, you have a significant invasion of sexual privacy. Dave Eggers imagines something like this happening in his dystopian satire The Circle, and although I am pretty convinced that privacy is dying out, I’m not sure that sexual privacy is something that should be given up in this manner. There is a trade-off that needs to be considered here in terms of positive and negative sexual autonomy. In any event, even a complete recording of a sexual encounter will require interpretation of the signals being sent back and forth between the participants. People may continue to misinterpret those signals in ways that harm victims of sexual assault. You would need to overcome the social biases and prejudices mentioned at the outset to make a dent in that problem.

In the end, I suspect that consent apps are indicative of something Evgeny Morozov calls ‘technological solutionism’. Morozov defines this as an ideology that sees complex social problems as “neatly defined problems with definite, computable solutions or as transparent and self-evident processes that can be easily optimized — if only the right algorithms are in place!” (Morozov 2013). Here, we see the complex social problem of sexual assault, and the associated issues with giving and receiving consent, being defined in a way that renders them amenable to a technological solution. If we simply use the right prompts, direct the conversation using the right menu of options, and then record the output, we will reduce sexual assault and rape.

I don’t think the problem can be solved in that way.

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